Immigration enforcement is a major focus of attention of the Trump Administration – including in the business immigration context. One measure of this interest is the increase in I-9 audits. ICE reported that worksite investigations surged in FY 2018 by “300 to 750 percent” over FY 2017. Given that, many employers are considering whether to register for E-Verify.

E-Verify is the federal web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States based upon the presented documentation. The employer must still complete Form I-9s for each employee, even if E-verify is utilized.

Whether registering for E-Verify is right for your company will depend upon a number of factors. Below are some of the “pros and cons” to consider.

Pros

  1. Some state and federal government contractors are required to use E-Verify. The E-Verify requirement is specified in the contract. Although E-Verify is currently voluntary for most employers, some states require its use and the federal government may make it mandatory for some companies.
  2. Registered companies can offer eligible foreign student-employees in F-1 visa status an additional 24 months of optional practical training. This can be useful in recruitment and retention because it allows a company to continue to employ F-1 STEM students who do not “win” the H-1B lottery. It also allows a company to employ certain STEM students for up to 36 months without petitioning for an H-1B.
  3. Using E-Verify may help companies avoid receiving Social Security “No-Match” letters.
  4. After the initial weeks on E-Verify and the TNC process, employers generally report that it is not difficult and that results are immediate.

Cons

  1. Signing up for E-Verify allows the SSA and DHS to audit your data. E-Verify’s Monitoring and Compliance unit reviews the data every 30 days to determine if normal statistical parameters are met. If E-Verify spots issues, it will notify the appropriate government agency that an audit should be conducted. SSA, ICE, USCIS, and the IER all have MOUs (Memoranda of Understanding) with E-Verify that allows data to be shared, which leads to audits by these agencies.
  2. ICE has confirmed that E-Verify has no bearing in an I-9 audit and will not impact the outcome of an audit. In other words, the use of E-Verify by a company will not decrease the chance of an I-9 audit fine.
  3. More than one staff member in the company will have to be trained to use E-Verify and they must keep up-to-date on changes. This may be costly and time-consuming.
  4. E-Verify may generate erroneous non-confirmations of work authorization.
  5. The E-Verify system has had maintenance issues, and is periodically off-line, therefore timeliness of submissions may be affected.
  6. E-Verify is not available when the U.S. government is “shut down.” After the database is opened for use again, there is often a very short period during which users can submit data for employees hired during the shut-down, which can tax company resources.

If you have questions about whether E-Verify is right for your company, Jackson Lewis attorneys are available to assist you.

Volume “impact litigation” in the U.S. District Court for the District of Columbia may lead to details of the basis of alleged, unannounced, new USCIS policies regarding the H-1B visa program.

Attorneys are alleging that USCIS is using new policies to adjudicate H-1B petitions, without properly completing the required notice-and-comment procedures for administrative rule changes and without basis for any regulatory change. The lawsuits, through the pretrial discovery process, seek to uncover the purported policy changes or directives by which USCIS is operating.

“Impact litigation,” also known as strategic litigation, is used to effectuate change when an issue affects more than one individual. Using this strategy, ITServe Alliance, a nonprofit trade association for IT services, staffing, and consulting organizations, is challenging new USCIS policies on their substance, as well as on the manner in which they were promulgated. These policies require employers who want to hire H-1B workers to work at third-party worksites to deliver documentation proving a bona fide employer-employee relationship, as well as itineraries demonstrating definite assignments during the full period of the H-1B petition.

The H-1B RFE and denial is at an all-time high, but it is particularly high (34% – 80%) for consulting firms that place workers at third-party sites. ITServe Alliance’s lawsuit alleges that USCIS’ new policies are an “overreach.” Judge Rosemary M. Collyer, who is presiding over this and similar cases, suggested that the Administration simply does not want these workers in the country.

When individual companies file cases in federal courts challenging denials, USCIS often settles the case and rescinds the denial. While that is a good individual result, it does nothing regarding the underlying policies and future adjudications. That is where impact litigation comes in. Approximately 60 cases have been filed in the U.S. District Court for the District of Columbia challenging USCIS’ actions regarding H-1B petitions for consulting or staffing companies. The cases have all been consolidated as ITServe Alliance v. USCIS. Unlike class action cases, which often are quite prolonged, volume impact litigation does not require the group to establish that they are a proper “class” – something that would have been very difficult since each H-1B case is different.

It has been reported that Judge Collyer is contemplating ordering discovery to determine whether USCIS is treating consulting and staffing companies differently. This was an unexpected, but welcomed, development for ITServe Alliance and others interested in learning more about the inner workings of USCIS.

Jackson Lewis will continue to follow this case and provide updates as they become available.

In response to the depletion of numeric-only numbers for Form I-94 arrival/departure records, U.S. Customs and Border Protection (CBP) began to use alphanumeric “numbers” (i.e., composed of letters and numbers) in May 2019. This change has no impact on the validity of I-94 cards and numbers already issued, which will remain valid until their expiration dates.

Since 2013, the United States has been utilizing electronic Form I-94 to keep track of foreign nationals’ U.S. entry and exit records. This initiative was an effort to streamline the entry process through automation. This also enabled travelers to access their own electronic travel records online and to help increase accuracy and transparency of records. Travelers have been able to access their electronic I-94 Arrival Record (an 11-digit numerical code) to verify immigration status or employment authorization directly through CBP’s website. Travelers also are able to access their five-year travel history to the U.S. there as well. Under the new CBP format, the first 9 digits and the 11th digit will be made up of numbers, while the 10th digit will be a letter.

The rest of the arrival process remains the same. Upon arrival in the U.S., a CBP officer will inspect the foreign national and, if entry is granted, the officer will stamp the foreign national’s travel document (usually, a passport) with the date of admission, class of admission (i.e., visa category), and the date by which the traveler has to depart the U.S. (absent any extension). If the traveler requires a paper I-94, CBP can accommodate that by a secondary inspection process (which often means a long wait and additional questioning). Travelers arriving at land borders are still processed the “old” way – paper I-94s are issued. The U.S. has requested that those who are issued (or still have) a paper I-94 surrender it to their commercial carrier or to CBP upon exiting the U.S. CBP estimated that elimination of paper I-94 records would save $15.5 million a year, as well as 20 seconds of wait time per traveler entry.

Please contact your Jackson Lewis attorney with any questions.

President Donald Trump has introduced the broad outlines of his proposal for immigration reform. The “merit and heart system” focuses on security and establishing a more fully merit-based system for permanent residence (“green card”) status.

What do we know about the proposal so far?

In terms of security, it includes:

  • Construction of parts of the Southern Border Wall at 33 key areas to thwart drug and human trafficking
  • Further restrictions on asylum claims
  • Allowing longer detentions of immigrant families at the border

In terms of legal immigration, it includes:

  • No reduction in overall numbers of immigrants, but a change in priorities
  • Family based immigration will be reduced – only spouses and children will go to the “front of the line”
  • Merit-based immigration will be increased
  • Similar to naturalization requirements, merit-based immigration would include an English-language requirement and a civics test

According to the President, the new criteria will be “crystal clear.”  The merit-based system will focus on younger workers who can contribute to the economy for a longer period time who also possess:

  • Valuable skills
  • Job offers
  • Advanced education
  • Ability to create jobs for U.S. workers
  • Higher wages
  • Financial self-sufficiency

The security proposals are not apt to gain much Democratic support.  Moreover, the proposal does not include some items key to bi-partisan support.  There is no mention of the over 11 million undocumented individuals currently in the U.S. and there is no mention of the “Dreamers.”

Jared Kushner, White House Advisor, has worked on this proposal for months.  Whether it will morph into a bill or simply be used by Congress as it works to come to some sort agreement is yet to be seen.  Regardless of its prospects of ever becoming law, the expectation is that this proposal will be a key part of President Trump’s 2020 campaign messaging.

Long USCIS processing delays are now the norm for all types of immigration cases. Indeed, the delays have reached crisis levels. Processing times increased by 46% over the past two fiscal years and 91% since FY 2014.

In fact, even though applications declined by 17% in FY 2018, processing times continued to rise. In some cases, H-1B petitions can take up to a year for a decision. I-140 immigrant visa petitions that used to take about 3 months to process are now taking about 8 months. Naturalization cases used to process in 5 months, but now they are taking about 10 months.

These delays have important consequences. U.S. businesses are hurt when they cannot obtain work visas for necessary or key employees in a timely way. Foreign-national employees become disenchanted due to their inability to obtain LPR status and may leave the U.S. for better prospects. Families suffer economically when dependents cannot obtain work authorization. Vulnerable populations suffer when they cannot obtain protection under U.S. immigration laws.

Recent changes in immigration policies based upon the “Buy American, Hire American” executive order are contributing to the delays.

In a May 13, 2019, letter to the Director of USCIS questioning the delays, 36 members of Congress (representing both parties) pointed out that USCIS was created “to be a service-oriented, immigration service agency with the mission to adjudicate immigration matters to enable individuals to obtain work authorization, citizenship, humanitarian protection and other important services.” But the new mission statement issued by USCIS in early 2018 no longer emphasizes customer satisfaction but rather focuses on enforcement.

The May 13 letter is not the first time Congress has asked about the processing delays. The last letter on this subject sent to the Director earlier this year, however, came only from Democrats.

Along with Congress, the American Immigration Lawyers Association is working to hold USCIS accountable. If you have questions about adjudication delays, please reach out to your Jackson Lewis attorney.

The Department of Homeland Security has announced plans to transfer more than 700 border agents from the 120 ports of entry at the Northern (Canadian) border to the Southern (Mexican) border. The purpose is to bolster the number of agents available to help with asylum seekers.

Members of the Congressional Northern Border Caucus (NBC) oppose these plans. Approximately 400,000 people and $1.6 billion in products cross the Canadian border daily. Removing border agents will cause delays, the Members contend, and the delays will only increase as the summer tourist season gets underway.

Members of the NBC have security concerns and also fear that delays will lead to economic hardships in their states. Representative Annie Kuster (D-N.H.) said, “Moving Customs and Border Protection personnel away from our northern border has the potential to impact U.S.-Canadian commerce and tourism just as we enter the busy summer months.” In a bipartisan letter to Acting Homeland Security Secretary Kevin McAleenan, Representatives from New York, Michigan, New Hampshire, Minnesota, Washington, North Dakota, and Vermont complained, “The decision to deploy northern border CBP officers to the southern border makes it increasingly more difficult for the agency to meet their core mission requirements at the border which include effectively securing U.S. points of entry and safeguarding and streamlining lawful trade and travel . . . .”

The U.S./Canada border stretches 5,525 miles and is the “longest land boundary between two countries in the world.” As long ago as 2010, close to 20 million Canadians took overnight trips to the U.S. Taking that trip during the summer months has always meant delays, but, with even more significant delays looming, Canadians may rethink travelling elsewhere.

Employers likely will feel the effects, too. Ports of entry already are turning away individuals applying for renewals of L visas. Along with tourists, potential U.S. employees applying for TNs or Ls at the ports of entry undoubtedly will be subject to delays that are longer than usual as the ports of entry struggle to keep up.

Senator Susan Collins (R-Me.) noted, “[T]he U.S. government will be monitoring the Northern border to ensure that it is not ‘negatively affected’ by [the] transfers.” Jackson Lewis attorneys will provide updates on the DHS plans as they materialize.

The days of spontaneously traveling to Europe on a whim are coming to an end for U.S. citizens. For many years, U.S. citizens have been able to travel to most European countries with only a valid U.S. passport as a travel document. In 2021, the European Schengen Zone will be requiring a registration similar to the U.S. Electronic System for Travel Authorization registration system (ESTA) from U.S. citizens traveling to the Schengen Zone. Currently, the Schengen Zone includes 26 European countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

The European Travel Information and Authorization System (ETIAS) will be similar to the U.S. ESTA. All U.S. citizens traveling to Europe to enter the Schengen Zone will be required to register in advance. ETIAS is not a visa application. It does not require a trip to a Consulate. The application is completed online and will require a passport valid for three months beyond the intended stay, an email account and a credit or debit card. The cost will be approximately $8.00. The expectation is that 95% of applicants will be approved for a three-year ETIAS.

There are still almost 100 countries where U.S. citizens will continue, for now, to be able to travel without a visa or any pre-registration. Prior to travel, always check the U.S. State Department website for any entry requirements or country specific travel warnings. Useful tips for everyone, but especially for those traveling with children, also include:

  • Travel with certified birth certificates or raised seal birth certificates for everyone in your party. This is especially important if traveling with minor children because passports carried by children of U.S. citizens do not contain their parents’ names;
  • Passports should be valid for at least six months beyond your intended stay and have several empty pages, as some countries may require this for entry;
  • Bring extra passport photos and cash should those be required for an unexpected on-the-spot visa application (approximately 50 countries require U.S. citizens to obtain a visa on arrival);
  • Carry up-to-date immunization certificates and proof of health insurance; and
  • Check current airline luggage and security policies.

Jackson Lewis attorneys are available to assist you if you have questions about traveling without visas. Happy travels!

At the end of March 2019, the Trump Administration announced that it would release another 30,000 H-2B visas for seasonal employees for use through the end of September 2019. The annual allocation had been capped at 66,000 for the full year. In 2017 and 2018, the Administration increased the allocation by 15,000 visas. However, on January 1, 2019, the Department of Labor’s iCert system crashed when over 96,000 H-2B visas were requested. The unprecedented number of requests may have led to the unprecedented increase in the allocation.

The White House Office of Information and Regulatory Affairs (OIRA) has concluded its review of the increase. The OIRA is moving forward with the additional 30,000 visas. The new rule was released in the Federal Register on May 8, 2019.

The additional visas will only be available to businesses who can attest to “irreparable harm,” i.e., a risk of closure absent the visas. Moreover, the additional visas will only be available to “returning workers,” classified as those who have received H-2Bs at least once in the past three years (2016, 2017, 2018). The Department of Homeland Security (DHS) believes that these requirements will ensure national security and protect the U.S. workforce. Returning workers have already been vetted. They have shown that they will return home at the end of their temporary stay. DHS’s ability to require proof of irreparable harm will further prevent abuse.

This move provides some welcome relief to businesses in summer tourist areas where the ability to hire foreign workers can be key to keeping their businesses open. Last year, there were many hardship cases. Governor Larry Hogan of Maryland said “[a] second year of hardship could permanently damage Maryland’s seafood industry, causing these iconic family businesses to close and having a devastating impact on jobs in our state.”

Employers will be able to use previously certified labor certifications as long as the new start date is no more than 45 days after the certified start date. Jackson Lewis attorneys are available to assist you in making H-2B filings and can answer any questions you may have about the newly released visas.

On August 8, 2018, DHS issued a new policy that announced that foreign students would begin accumulating “unlawful presence” if any violation of status had occurred, whether known to the student or not. On May 3, 2019, in Guilford College et al. v. DHS, Judge Loretta C. Biggs in the U.S. District Court for the Middle District of North Carolina issued a nationwide preliminary injunction stopping DHS from enforcing its new policy while the case before her was pending.

Prior to the August 8th policy memo, students did not accumulate unlawful presence unless USCIS made a formal finding of a violation of status or if they were ordered to be removed, deported or excluded. After the memo, a simple violation of status (knowing or unknowing) without any formal finding could start the unlawful presence clock. With unlawful presence came the possibility of becoming subject to the three and ten-year bars to admission.

In Guilford, the court found that the plaintiffs were likely to succeed on two counts:

  • That the issuance of the August 8th policy memo violated the Administrative Procedure Act; and
  • That the policy memo conflicted with the text of the Immigration and Nationality Act.

Judge Biggs concluded that although DHS allowed for a period of public comment on the policy memo, it did not publish the new policy in the Federal Register and it “did not provide a reasoned response” to the comments it received. Judge Biggs also concluded by “redefining ‘unlawful presence’ to begin to accrue on the day that a nonimmigrant’s lawful status lapses, the Policy Memorandum renders both concepts – ‘unlawful presence’ and ‘unlawful status’ – essentially synonymous” while Congress deliberately made a distinction between the two.

Sixty institutions of higher education across the country signed onto an amicus brief contending that the uncertainty created by the memo would have a chilling effect on international students planning to attend colleges and universities in the United States.

The outcome of this case may have important consequences for students who were caught off-guard by the August 8th policy memo.

The Administration has not yet responded to the Court’s ruling. DHS could appeal. In the meantime, Judge Biggs is moving the case along. All replies and responses to motions for summary judgement are due by May 30, 2019. Jackson Lewis will continue to provide updates as the litigation progresses.

 

The North American Free Trade Agreement (NAFTA) signed in 1992 was meant to make North America more competitive in the global economy by reducing trade barriers and increasing business development among the U.S., Canada and Mexico.  It essentially created a free-trade zone, but always faced criticism.  Opponents believed and have argued, among other things, that the agreement actually harmed U.S. workers.

In 2018, President Donald Trump renegotiated NAFTA in part to lower the trade deficit between Mexico and the U.S.  In September 2018, the U.S., Mexico and Canada agreed to sign onto the new “NAFTA” which would be known as the USMCA, the United States Mexico Canada Agreement.

Throughout the history of NAFTA/USMCA, special status was accorded to Canadian workers.  Because Canadians do not need visa stamps in their passports to enter the U.S., they were able to apply for L visa classification at ports of entry.  There was no need to go to a consulate nor file a petition with USCIS.  But that benefit is now being limited.  After twenty years of adjudicating renewals of L status at ports of entry, CBP is refusing to adjudicate anything other than an initial L petition or applications for intermittent/commuter Ls at the border.

This means that employers who want to “renew” or “extend” L status for Canadians must apply to USCIS.  Not only does this extend the adjudication process but it also means that L applicants will not have an in-person opportunity to explain their circumstances to officers who are very familiar with the process.  While this does not seem in accord with the ideals behind NAFTA and USMCA, it is consistent with President Trump’s Buy America, Hire America Executive Order (BAHA).  With BAHA, the Administration seeks to protect U.S. workers by making it more difficult for foreign nationals to obtain work authorization in the U.S. and, the thinking goes, take jobs that would be filled by those workers.

The Request for Evidence (RFE) and denial rate for temporary visas has grown exponentially and adjudication timelines have created long delays.  The USCIS denial rate for L-1B petitions in the first quarter of FY 2018 was approximately 30% and the denial rate for L-1A petitions rose 67% during FY 2017 to 21.4%, far higher than has been generally experienced at the ports of entry.

If you have questions about options for obtaining L visa classification for Canadians, please reach out to your Jackson Lewis attorney.